Ellison v. City of Fort Lauderdale

• Decision Date: 24 July 1964
• Docket Number: No. 4988,4988
• Citation: 166 So.2d 797
• Parties: Bertram C. ELLISON, Appellant, v. CITY OF FORT LAUDERDALE, a municipal corporation, and Lester E. Holt, as Chief of Police of the City of Fort Lauderdale, Appellees.
• Court: Florida District Court of Appeals

Page 797

166 So.2d 797

Bertram C. ELLISON, Appellant, v. CITY OF FORT LAUDERDALE, a municipal corporation, and Lester E. Holt, as Chief of Police of the City of Fort Lauderdale, Appellees.

No. 4988.

District Court of Appeal of Florida, Second District.

July 24, 1964.

Rehearing Denied Sept. 2, 1964.

Morgan, Carratt & O'Connor, Fort Lauderdale, for appellant.

C. Shelby Dale, James E. Edwards, William J. Leee, Fort Lauderdale, for appellees.

PER CURIAM.

Plaintiff brings this interlocutory appeal from an order dismissing his complaint by which he sought to enjoin the defendant authorities from enforcing a penal ordinance and disrupting his stabling and use of certain ponies in connection with a nursery school in residential Fort Lauderdale. The chancellor recited in his order that 'the plaintiff is seeking to enjoin the city from the enforcement of its police powers and, normally, a court of equity does not interfere with the city's enforcement of its police powers.'

Plaintiff petitioned for a Constitutional Writ of Injunction pending this appeal and defendants moved to quash the appeal. Previously deferred, the petition and motion are denied.

Plaintiff alleged in substance that he was charged and tried and adjudged guilty in municipal court under an invalid ordinance and that his conviction is not on appeal to circuit court; that the defendants have arrested him again and threaten additional arrests to compel him to conform to the ordinance; that his nursery school has been in operation since 1957 and represents a considerable investment in buildings, playground, swimming pool, pony stables and other facilities, and that at the time of its establishment the property was zoned R-O which permitted the keeping of poines; that the riding of poines is part of the school curriculum; that the defendant city unlawfully changed its zoning by amendment without requisite notice and formality and, by the enforcement thereof, attempts to deprive plaintiff of the use of his property without due process of law although the use aforesaid began prior to the amendatory ordinance and is a valid nonconforming use. The complaint concludes with averments of irreparable injury and inadequate remedy at law and a prayer for injunctive relife against repeated harassments by the defendants. The defendants contend that their action is prima facie a valid exercise of the police power which the complaint does not effectively negate or show to have been abused, and that the...